Saturday, March 20, 2010

In Texas, a Class "C" misdemeanor is an offense punishable by fine only. It is classified as a criminal offense, but it is the least serious criminal offense. Generally, citations issued for traffic and other violations, with a date to appear in court at a later time, fall into this category. Although such violations are "fine only" offenses, there may be other consequences. Paying the fine results in a conviction. A conviction on some violations may result in points on your driving record, surcharges, license suspension, higher insurance rates or other unintended consequences.

What is the statute of limitations for a Class "C" misdemeanor in Texas?

In Texas, the statute of limitations for a Class "C" misdemeanor is two years. Be aware that this does not mean that traffic ticket violations and other Class"C" misdemeanors that are two years or older cannot be prosecuted. What it does mean is that if the offense is two years old, and a complaint has never been filed, then it is barred by the statute of limitations, and cannot be prosecuted. The complaint is not the citation issued by the officer. The complaint is a formal sworn document which meets the requirements of Chapter 45, Texas Code of Criminal Procedure. Only the filing of the complaint stops or tolls the statute of limitations. So, if a violation occurs and two years elapse without the complaint being filed, then it is barred from prosecution. On the other hand, If a complaint is filed within two years of the violation date, even if it is filed on the last day of the two year period, then it can still be prosecuted even after two years from the date of the violation.

Are all traffic violations in Texas classified as Class "C" misdemeanors?

No. Not all traffic violations in Texas are classified as Class "C" misdemeanors. Serious traffic violations where there is personal injury, property damage or intoxication involved may be classified as Class "A" or "B" misdemeanors or Felonies and punishable by fines and jail time. Also, automated traffic ticket violations such as red light camera violations are civil instead of criminal, and are therefore not Class "C" misdemeanors.

Charles French was licensed to practice law in Texas in 1991. The majority of his practice includes the Justice of the Peace and Municipal Courts in Houston, Harris County and surrounding counties. You may visit his website by going to:

Sunday, March 7, 2010

Texas traffic courts may legally charge a dismissal fee up to $20.00 for the dismissal of certain violations including expired registration, expired drivers license and expired inspection. A court may not however, charge a dismissal fee for the dismissal of a Failure to Maintain Financial Responsibility (FMFR) violation, more commonly known as a "No Insurance" violation.

ONCE IT WAS OKAY FOR COURTS TO CHARGE THIS FEE

The 70th legislature amended the Motor Vehicle Safety-Responsibility Act to allow courts to charge a $10.00 dismissal fee in cases where the person was unable to produce proof of financial responsibility when requested by an officer, but they were able to subsequently provide adequate proof that they were in fact in compliance with the act, either covered by insurance or by other means permissible under the act.

THE TEXAS ATTORNEY GENERAL

SAID THE FEE WAS UNCONSTITUTIONAL

In 1988, that section of the Motor Vehicle Safety-Responsibility Act allowing courts to charge the $10.00 dismissal fee on financial responsibility cases was declared unconstitutional by The Office of the Attorney General of Texas, Opinion No. JM-917. The Attorney General opined that since the crime is driving without financial responsibility, and not failing to show proof to the officer, charging a dismissal fee to someone who was actually insured amounts to punishing the person for a crime they did not commit, and is therefore, unconstitutional.

THE LEGISLATURE AGREED WITH THE ATTORNEY GENERAL

The Motor Vehicle Safety-Responsibility has since been codified into Texas Transportation Code, Chapter 601. Heeding the advice of the Attorney General Opinion, that the fee is unconstitutional, the legislature correctly chose to omit any provision authorizing courts to charge a fee for the dismissal of financial responsibility cases.

FINANCIAL RESPONSIBILITY CASES ARE DIFFERENT FROM

EXPIRED REGISTRATION, DRIVERS LICENSE AND INSPECTION CASES

In contrast to the financial responsibility dismissal statute, the statutes dealing with the dismissal of expired registration, expired drivers license and expired inspection specifically authorize courts to charge dismissal fees on those type of cases. These fees are not unconstitutional because, unlike financial responsibility cases, the person is paying a dismissal fee for a violation they actually committed which they later remedied by renewal of their registration, drivers license or inspection sticker. These statutes allow the courts some discretion to encourage compliance by allowing a small fee, rather than a big fine, for those violators who come into compliance. Compliance fee would probably be a more appropriate term for these fees.

Since charging a dismissal fee on a "No Insurance" violation is unconstitutional, the legislature has intentionally removed the statutory authority for the courts to do so. Therefore, any court that assesses or charges such a fee is doing so illegally.

Charles French was licensed to practice law in Texas in 1991. The majority of his practice includes the Justice of the Peace and Municipal Courts in Houston, Harris County and surrounding counties. You may visit his website by going to:

We have a right to rely on what our public officials tell us. They owe us the duty to be competent in the areas of information they give to the public. Furthermore, they owe us the duty, if not the courtesy, to make sure that what they tell us is correct. I would prefer that a court clerk tell me "I'm not sure, I'll have to check and get back with you" rather than give me erroneous information off the top of their head. The fact is, when court personnel give wrong information, bad things can and often do happen.

Let me be the first to say that the majority of courts and court personnel that I deal with are both professional and knowledgeable at a level that serves the public well. However, from time to time, I run across some recurring situations whereby a justice or municipal court defendant has been led astray by court personnel. Some of these instances of misinformation have or could have had devastating consequences for the defendant in the case. In many cases the erroneous information could have led to convictions, points on the driving record, hundreds of dollars in surcharges and/or license suspensions. Below, I have listed some of the more common situations I run into.

Although, these are actual situations that I have personally experienced, I will not name the courts, since to do so would unfairly stigmatize them for the deeds a a few bad apples. If you have a situation similar to one or more of those discussed below, then you may want to contact an attorney before you act on the information given to you by the clerk.

The clerk said "Your name is not on the insurance so you'll have to pay the fine."

The question is whether or not you were covered for purposes of the statute when you were issued the citation. The clerk is wrong to automatically assume that you are not covered merely because your name does not appear on the policy or I.D. card you give to them. There are several instances where, even if you do not have insurance in your name, if the car you were driving was covered, then you were your covered for purposes of the law you are charged with violating. It will depend on the insurance company, the policy and whether or not you were excluded as a driver. The best way is to verify it through the insurance company prior to providing the insurance to the court. It is a good idea to get the person's name at the insurance company to whom you spoke.

The clerk said "Your name is on the insurance, but the vehicle is not listed."

The clerk is wrong to automatically assume that you are not covered when you are listed on insurance, but the vehicle you were driving does not appear on the policy or I.D. card you give to the court The insurance I have covers me regardless of whose vehicle I am driving, even if the owner of the car I'm driving does not have insurance on that particular vehicle. Again, the best thing to do is to verify it through the insurance company prior to giving it to the clerk.

Do not automatically assume that you were not covered because either your name or the vehicle is not listed on the insurance. Call the insurance company and know ahead of time whether you were covered before presenting your proof of insurance to the clerk.

Unfortunately, I know people who have relied on what the court clerk told them, and have paid the fine when they were actually covered and the violation should have been dismissed. As a result they were needlessly convicted, incurred license suspensions and hundreds of dollars of surcharges, when in fact, they should not have done so.

If you discover that you actually were not insured at the time of the citation, you may want to contact an attorney of your choice to represent you on the matter.

The clerk said "There is a dismissal fee on the insurance case."

The clerk is wrong. While the court can charge a dismissal fee of up to $20.00 for the dismissal of expired drivers license, expired inspection and expired registration, it cannot do so on Failure to Maintain Financial Responsibility cases where the person actually had insurance at the time they were cited.

I have a client I'll call Joe. Here is what happened.

Joe was pulled over and issued a citation for Failure to Maintain Financial Responsibility (FMFR). He had insurance coverage at the time he was stopped, but did not have proof with him. A week later, he faxed his proof of insurance to the court and called to confirm they received it, which they did. Joe assumed the case had been dismissed, which it should have been.

Joe later discovered that he had a delinquency of $324.00 and a hold on the renewal of his drivers license from the same court to which he previously faxed his proof of insurance. Upon contacting the court, Joe was told that the delinquency and hold on his license renewal were due to his not paying a $10.00 dismissal fee on the insurance case. Joe was told that he would have to pay the $324.00.

Had Joe listened to the clerk and paid the $324.00, he would have been wrongly convicted of FMFR. He would have incurred $260.00 surcharges every year for three years and possibly triggered a license suspension.

Here's why the court was wrong and Joe was right. The court illegally charged Joe a $10.00 dismissal fee for the dismissal of his insurance case. The clerk wrongly assumed there was a dismissal fee on FMFR cases as there are for expired drivers license, expired inspection and expired registration cases. These cases differ from FMFR cases. Expired drivers license, expired inspection and expired registration cases are such that the person actually committed a violation and later fixed them so that they are allowed to pay a dismissal fee for compliance after the fact. In an FMFR case, where the person later shows proof they were covered at the time they were issued the citation, they were never in violation of the law, and therefore forcing them to pay a dismissal fee for a crime they did not commit would be unconstitutional.

Simply put, Joe was illegally assessed a $10.00 fee by the court. The court did not tell him about the fee. Since the fee was not paid, Joe was shown to be delinquent on the fine of $324.00 and a hold was placed on the renewal of his drivers license. We sent a letter putting the court on notice of the error, and the case was dismissed. I wonder how many cases like Joe's have occurred in that court.

The clerk said "He's never appeared, but the case is so old, he just needs to pay it."

The clerk is wrong. If the defendant has never appeared before the court on the charges, the only option is not just paying it. The defendant has the right to post bond, get the cases out of warrant, Pay his OMNI fees to renew his license, get his cases properly before the court again and get a new court date. It does not matter how old the case is. The age of the case has absolutely nothing to do with whether or not he can exercise his rights to do these things. If the defendant simply paid it like the clerk said, the defendant would unnecessarily be convicted and incur all consequences associated with such conviction (License suspension, points, surcharges etc.).

The clerk said "We cannot pull the case from the OMNI system (DPS Failure to Appear Database) until it is disposed of."

The clerk is wrong. By law, once the defendant posts a bond or gives other security to reinstate the case on the docket, the defendant may pay the OMNI fees at that time. The clerk must then send the clearance notice to DPS to take the non-renewal hold off of the license.

If the defendant followed what the clerk said, then they would be deprived of renewing their license until the case was disposed of, possibly months later. I am still surprised at how many clerks, and judges for that matter, do not know this.

While most court personnel I deal with are professional and knowledgeable, there is a possibility of misinformation as to your various options. Court personnel are not supposed to give legal advice. They may inform you of some options regarding your case, but may fall short of informing you about all of your options. You may want to contact an attorney of your choice before acting on your case.

Charles French was licensed to practice law in Texas in 1991. The majority of his practice includes the Justice of the Peace and Municipal Courts in Houston, Harris County and surrounding counties. You may visit his website by going to: